The Unspoken Cost of the Unwell Lawyer

By Brewster S. Rawls
on August 15, 2018
·

shares

The statistics don’t need to be restated. Our profession faces a crisis of widespread mental health issues, alcoholism and other addiction concerns. The current discussion of and focus on “lawyer wellness” is long overdue. What is less discussed—in fact only rarely and tangentially mentioned—is the havoc wreaked by impaired lawyers. Clients and colleagues suffer, often hugely.

The late comedian Robin Williams was quoted as saying: “An alcoholic is someone who can violate his standards faster than he can lower them.”

While perhaps crude and maybe even a bit unfair, we see some proof of that in disciplinary statistics. Nationally, a large number of lawyer disciplinary actions involve substance abuse issues. The statistics often cited are in the range of 25-30%, and some sources cite even higher levels. Indeed, these statistics are a direct consequence of those “lower standards” described by Robin Williams. Lawyers end up so far down that they get into public trouble.

If you dig into the disciplinary statistics you will find that many of them, if not most, deal with lawyer dishonesty and/or incompetence. Dishonesty issues, like mishandling client funds, differ from other ethical issues that can be attributed to firm culture. Financial misconduct is considered to be a dishonesty issue “rooted in the problems of individual lawyers,” often the result of the attorney’s greed, financial or personal pressures, and/or often substance abuse, according to Bruce A. Green, author of The Ten Most Common Ethical Violations.

While the percentage of cases that expressly include substance abuse as an issue is high enough, those statistics likely understate the problem, even among those cases involving disciplinary proceedings.

These numbers—and their import—are hard to ignore. Lawyers with substance abuse issues are the ones most likely to be caught and punished for lying, cheating, and stealing. That sounds harsh, especially when considered in the context of considering substance abuse as simply another disease or impairment to be diagnosed and treated like any other ailment, but the analysis isn’t misplaced. Deception is not typically an element of most medical illnesses. Lawyers with substance abuse problems are much more likely to under-report, minimize or deny the existence of a problem. While deceit and manipulation may be a part of the disease process, that does not make the impact any less real for clients and colleagues. If the money held in a trust account is embezzled, the loss to the victim is no different if the perpetrator acted with conscious malice vs. behavior attributed to an underlying pathology.

Only a small percentage of lawyers are ever disciplined, and it would be foolish to assume that the disciplinary processes address more than a relatively small proportion of lawyer misdeeds. If, as popularly stated, an average of 30% of lawyers likely have substance abuse issues, and if a huge proportion of the problems that do get addressed by the authorities involves substance abuse, then it is fair to say many problems, including serious ones—probably the vast majority, in fact—are dealt with privately (or not dealt with as the case may be).

If a large proportion of lawyers have substance abuse concerns, then very few law firms, if any, will ever avoid dealing with impaired lawyers. Most state bars recognize the risks posed by impaired lawyers and have issued guidance. In some form or another, most bar guidance boils down to a requirement that a firm takes “reasonable steps” to protect clients when it is on notice of a lawyer’s impairment. This sounds good in theory, but in reality, the advice offers almost no practical help for those who lead law firms.

We ought to be preventing problems, or at least catching them before they become bigger ones. That’s the theory anyway. The first problem for any law firm leader is what constitutes knowledge of an impairment. If someone is drunk in the office and is consistently making significant errors or missing deadlines, most would agree that is notice. But if you get to that point, things are pretty far gone and damage is likely to have occurred already. A DUI or similar offense would be noticed. Of course, if you are handed information from a qualified professional that a lawyer is impaired, then you have noticed, but again that is not likely to occur—at least, not early in the process. Likewise, a lawyer may tell you that they have a problem and are seeking help. That’s great, and more often than not, it probably means a later (and potentially bigger) problem has been averted. It is likely a rare event, however.

In reality, the typical presentation is usually not clear cut. Most of us end up being confronted with situations where we have a reasonable suspicion of a problem, but not much more. Based on observations or second-hand reports, you may be fairly confident that a colleague presents at least a potential risk, but you have no hard proof. While the notion of the “high-functioning alcoholic” may be a myth, the reality is that a lawyer can be markedly impaired, but in many respects seem to do his or her work at least adequately. The affliction does not spare those who are intelligent and motivated. Nor does it always spare those lawyers who can attract business.

From a law firm manager’s perspective, what are some of the indications that you might have a lawyer who is impaired and/or addicted? The list below is hardly exhaustive, but it gives you something to consider:

Client complaints about unresponsiveness. This would include concerns that come to you indirectly or are otherwise oblique.

Vague complaints or references by more junior lawyers and staff about the lawyer being unavailable or not providing guidance.

Vague complaints or references by more junior lawyers and staff about the lawyer being inappropriate – and sometimes this is cast as humor.

A tendency of the lawyer to not admit even small errors and/or to blame others even for situations where they were clearly responsible.

You catch the lawyer in frequent lies, even about matters that are of little if any consequence.

Lawyers outside the firm frequently make references (usually oblique) to your lawyer not being trustworthy or being unorganized, dilatory, or uncooperative.

The lawyer is known to get very drunk at social or bar functions.

The lawyer seems to resent the good fortune or success of others and will easily denigrate others in that regard.

They are a “drama queen” and prone to escalating events unduly or inexplicably.

The lawyer has a history of inappropriate emails, calls or text messages, often sent at unusual hours.

The lawyer is often late for appointments and/or has a pattern of last minute cancellations.

The lawyer seems to avoid or put off difficult activities that require hard focus. For example, you have a lawyer who should be regularly trying cases, but they mostly seem to be put off for one reason or another.

The lawyer goes missing during regular business hours.

The lawyer’s timekeeping or billing is suspect. For example, the input time simply seems out of line with what was actually involved. Another example would be a pattern of abnormally high write-offs, non-payment or complaints about billing.

You find suspicious expenses and/or firm-related purchases.

With regard to any of the items above, a given behavior may be consistent with impairment but does not prove it. A mistake or even a pattern of mistakes may simply be just that, errors of which anyone is capable. Even the best lawyers have clients who are unhappy and can make heinous and unreasonable criticisms. People sometimes drink too much at social functions and by itself that does not mean they are a risky lawyer. Some people are just jerks, but that is that. However, if you’re seeing a lot of the sort of behaviors listed above or similar ones, you may have reason to be concerned.

Let’s take a moment to consider context. We are talking about more than just following the mandate from the bar. It is not always the case with government requirements, but directives to deal with impaired lawyers are also good business. Someone displaying the sort of traits listed above, let alone the more obvious ones associated with addicted lawyers, is almost certainly a toxic presence in a law firm. That toxicity has a price. It may be hard or impossible to quantify, but it is most likely larger than you might guess. The impact is not just direct, but also in the lost opportunities: The client you never got or the great colleague who left because they didn’t want to put up with the drama anymore. The cost in dollars may be huge, but so is the emotional toll on those who work at a law firm.

Returning to the central issue, the tough question is what to do about your concerns. Of course, you can review a lawyer’s handling of matters or otherwise investigate, but that is an effort fraught with danger. It may or may not even prove anything. The dynamics of most law firms are not strictly hierarchical. It’s one thing for a senior partner to examine the conduct of a young associate. It is quite another to dig into the files of another partner, even if you are the managing partner or president. Most of us tend to value our independence and often guard it jealously. Intrusions don’t tend to sit well. In many firms, there is a wide variation in the work habits of lawyers. Jealousies and rivalries are common even in relatively functional firms. In this milieu, especially as we become more senior, most of us rarely appreciate others “checking” on our work or activities. Tell someone you are doing so because you suspect impairment, and the reaction is not likely to be warm and fuzzy. And then we come full-circle to the concern that addicted lawyers are not necessarily going to be honest, even when confronted in the best possible way. In sum, the issue of what constitutes notice is a very gray area.

Even with notice, the issue of “reasonable measures” is difficult. Most states have programs to help impaired lawyers, and those have the potential to be very effective. The downside is that they generally rely on voluntary participation. Likewise, monitoring or supervising another lawyer’s practice, especially a more senior one, is easier said than done. Again, it is a proposition based on the voluntary compliance of the monitored lawyer. The bottom line is that unless the individual recognizes that they need help, or they are in a position that they have no practical (or legal) choice but to cooperate, the ability of a law firm’s management to implement reasonable measures is limited.

In reality, you only have one tool to use as leverage on the addicted lawyer, and it is an extreme one: The threat of terminating employment. That is a threat that is only meaningful if you are truly willing to do it, which is not easy. You are talking about firing lawyers who have been integral and often valuable members of the practice for a long time. Often they are or have been personal friends. It’s ugly. In some instances, the financial impact on a firm can be quite significant. Innocent people lose their jobs and get hurt.

Is there a better way to address these issues? Yes, and the medical profession provides a good example. In most places, if a doctor is thought to be impaired, there is an expectation, if not an express mandate, that the provider is referred to the appropriate authorities and evaluated. If an impairment is diagnosed, it is then addressed. Frequently, a doctor can go to the medical board voluntarily, where they are placed in a monitoring and treatment program, but allowed to continue to practice. The difference between these medical programs and most bar programs is that if the doctor does not comply with the treatment plan, they can—and often do—lose their license to practice. That is very powerful leverage and it provides greater protection to the public than what we lawyers do.

What the various states do with healthcare providers is not perfect, but in most instances, it is better than what the bar does. Right now, when it comes to substance-abusing lawyers, going to the bar is not really an option unless the lawyer has been caught committing some misdeed or is just grossly impaired. Doesn’t it make more sense to do something before that point? Even if you fire a lawyer from your firm, in most instances they simply move on to another firm. And, sadly, the harm to some client(s) or another law firm may be far worse than anything that lawyer did at your firm. While all of us should have a reasonable wariness of the bar or any government entity monitoring or supervising individual behavior, is that worse than problem lawyers merely being passed along, often ending up in even more serious trouble? Albeit imperfect, aren’t clients better protected when the bar has the ability to impart consequences?

This is not meant to be harsh or unfeeling toward lawyers with mental health or addiction issues. Such individuals need help and treatment. However, in our focus on lawyer wellness, we cannot lose sight of the other victims, the clients, and colleagues of impaired lawyers.

About the Author

Brewster S. Rawls is the founder of Rawls Law Group, a healthcare law firm based in Richmond, VA. Contact him on Twitter @RawlsLawGroup.